President Trump Vetos Congress' Rebuke of Border Order

[Osiris-ODS]

It will still end up at SCOTUS.

I wouldn't bet on that. This is hardly new territory. The Supreme Court (and lower federal courts of appeal) is notorious for booting separation of powers cases for a variety of reasons. The reason people think this conflict is a groundbreaking separation of powers conflict is because the numerous prior instances either happened long enough ago that most people don't remember or care (like any news cycle) and/or didn't get nearly the same media coverage.

How many of those overrode the will of Congress?

Was there any objection to any of those declarations from a majority of any chamber of Congress? No president has ever resorted to declaring a National Emergency to be able to fund a completely partisan policy.

Here's a perfect example of such a case: Sanchez-Espinoza v Reagan, 248 U.S. App. D.C. 146, 210 (D.C. Cir. 1985), which was brought by members of Congress against the Reagan Administration, arguing executive overreach in violation of the Appropriations Clause based on Reagan's use of treasury funds to support the Contras in Nicuragua in violation of the Boland Amendment (specifically forbidding use of fiscal appropriations to support the Contras), and further contending that Reagan's use of the funds violated the War Powers Clause, which delegates Congress with the power to declare war. The case was dismissed on the grounds that it presents a "nonjusticiable political question."

That last phrase may ring a bell to some of you that were paying attention in high school history class. The "political question doctrine" was laid out by the Supreme Court back in 1803, in the famous case Marbury v. Madison, 5 U.S. 137, 170 (1803), wherein the Supreme Court wrote: “[q]uestions, in their nature political, or which are, by the Constitution and laws, submitted to the executive can never be made in this court.” The Supreme Court has since established various factors for determining whether a dispute implicates political question doctrine (generally outlined in Baker v. Carr, 369 U.S. 186, 217 (1962), I won't restate them here unless someone wants to read them), the presence of any of which will cause the court to declare the controversy a nonjusticiable political question.

To that end, federal courts routinely decide that separation of powers controversies invoke the political question doctrine, and thereby constitute nonjusticiable political questions. They also repeatedly emphasize that the judicial branch is not suited to analyze and enforce issues of budgeting and accounting. I cited one example above involving a challenge to actions taken by a Republican President (Reagan) "against the will of Congress," and here's one involving a similar challenge to action taken by a Democrat President (Clinton) "against the will of Congress." See Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000) (upholding dismissal of suit brought by members of Congress challenging President Clinton's act of war in Yugoslavia after Congress voted down declaration of war, emphasizing that Congress has the means necessary to remedy their grievances, i.e., by passing new legislation prohibiting use of appropriated funds for specified purposes, etc). The Supreme Court declined to consider it on further appeal (certiorari). Campbell v. Clinton, 531 U.S. 815 (2000). See also Chenoweth v. Clinton, 181 F.3d 112, 115 (D.C.Cir.1999) (emphasizing the separation-of-powers problems inherent in legislative standing, and holding congressmen had no standing to challenge the President's introduction of a program through executive order rather than statute).

Welcome aboard! Lots of debate on this forum.

I read your post 3x and still am not sure what you're predicting. I think you say that Trump's emergency declaration will stand the court test(s). So Trump wins and Nancy loses. But, your post also seems to say that future irrational emergencies by the democrats have just as good a chance of not being reversed. I recall that Obama had a terrible record in the USSC with the DACA case coming up this summer. I'm hoping that the USSC can referee between the EXEC & Legislative branches, keeping the wall but stopping the "Green New Deal".
Obama Has Lost in the Supreme Court More Than Any Modern President

My post was mostly to point out that conflicts like these, Congress v President over separation of powers disputes, usually never even make it to the Supreme Court. There are, of course, other ways challenged executive action can end up before the Supreme Court, such as suits by private citizens/groups/states, which are not predicated on separation of powers controversies, but involve individual constitutional rights being impinged by the executive. Again, this is a very general summary. There have been countless federal court cases addressing these kinds of disputes over the past 200 years, with a variety of nuances, and with ever changing legislation, so to know what exactly will happen in any one future case is impossible to predict. I wouldn't bet on this case bucking the longstanding trend of courts declaring it a nonjusticable political question. The next "future irrational emergency by the democrats" is an unknown. If it's an emergency that impinges upon individual Constitutional rights protected by the Bill of Rights, it will be in the purvew of SCOTUS. If it's about an emergency allocating $500 billion to build bio domes on Mars due to climate change, any separation of powers lawsuit would probably end the same way most of them do. Then the legislature has to revisit the appropriation and restrict its use in precise detail if they don't approve of the President's use of the previously appropriated funds.

 

[kyzr]

It will still end up at SCOTUS.

I wouldn't bet on that. This is hardly new territory. The Supreme Court (and lower federal courts of appeal) is notorious for booting separation of powers cases for a variety of reasons. The reason people think this conflict is a groundbreaking separation of powers conflict is because the numerous prior instances either happened long enough ago that most people don't remember or care (like any news cycle) and/or didn't get nearly the same media coverage.

How many of those overrode the will of Congress?

Was there any objection to any of those declarations from a majority of any chamber of Congress? No president has ever resorted to declaring a National Emergency to be able to fund a completely partisan policy.

Here's a perfect example of such a case: Sanchez-Espinoza v Reagan, 248 U.S. App. D.C. 146, 210 (D.C. Cir. 1985), which was brought by members of Congress against the Reagan Administration, arguing executive overreach in violation of the Appropriations Clause based on Reagan's use of treasury funds to support the Contras in Nicuragua in violation of the Boland Amendment (specifically forbidding use of fiscal appropriations to support the Contras), and further contending that Reagan's use of the funds violated the War Powers Clause, which delegates Congress with the power to declare war. The case was dismissed on the grounds that it presents a "nonjusticiable political question."


That last phrase may ring a bell to some of you that were paying attention in high school history class. The "political question doctrine" was laid out by the Supreme Court back in 1803, in the famous case Marbury v. Madison, 5 U.S. 137, 170 (1803), wherein the Supreme Court wrote: “[q]uestions, in their nature political, or which are, by the Constitution and laws, submitted to the executive can never be made in this court.” The Supreme Court has since established various factors for determining whether a dispute implicates political question doctrine (generally outlined in Baker v. Carr, 369 U.S. 186, 217 (1962), I won't restate them here unless someone wants to read them), the presence of any of which will cause the court to declare the controversy a nonjusticiable political question.

To that end, federal courts routinely decide that separation of powers controversies invoke the political question doctrine, and thereby constitute nonjusticiable political questions. They also repeatedly emphasize that the judicial branch is not suited to analyze and enforce issues of budgeting and accounting. I cited one example above involving a challenge to actions taken by a Republican President (Reagan) "against the will of Congress," and here's one involving a similar challenge to action taken by a Democrat President (Clinton) "against the will of Congress." See Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000) (upholding dismissal of suit brought by members of Congress challenging President Clinton's act of war in Yugoslavia after Congress voted down declaration of war, emphasizing that Congress has the means necessary to remedy their grievances, i.e., by passing new legislation prohibiting use of appropriated funds for specified purposes, etc). The Supreme Court declined to consider it on further appeal (certiorari). Campbell v. Clinton, 531 U.S. 815 (2000). See also Chenoweth v. Clinton, 181 F.3d 112, 115 (D.C.Cir.1999) (emphasizing the separation-of-powers problems inherent in legislative standing, and holding congressmen had no standing to challenge the President's introduction of a program through executive order rather than statute).

Welcome aboard! Lots of debate on this forum.

I read your post 3x and still am not sure what you're predicting. I think you say that Trump's emergency declaration will stand the court test(s). So Trump wins and Nancy loses. But, your post also seems to say that future irrational emergencies by the democrats have just as good a chance of not being reversed. I recall that Obama had a terrible record in the USSC with the DACA case coming up this summer. I'm hoping that the USSC can referee between the EXEC & Legislative branches, keeping the wall but stopping the "Green New Deal".
Obama Has Lost in the Supreme Court More Than Any Modern President

My post was mostly to point out that conflicts like these, Congress v President over separation of powers disputes, usually never even make it to the Supreme Court. There are, of course, other ways challenged executive action can end up before the Supreme Court, such as suits by private citizens/groups/states, which are not predicated on separation of powers controversies, but involve individual constitutional rights being impinged by the executive. Again, this is a very general summary. There have been countless federal court cases addressing these kinds of disputes over the past 200 years, with a variety of nuances, and with ever changing legislation, so to know what exactly will happen in any one future case is impossible to predict. I wouldn't bet on this case bucking the longstanding trend of courts declaring it a nonjusticable political question. The next "future irrational emergency by the democrats" is an unknown. If it's an emergency that impinges upon individual Constitutional rights protected by the Bill of Rights, it will be in the purview of SCOTUS. If it's about an emergency allocating $500 billion to build bio domes on Mars due to climate change, any separation of powers lawsuit would probably end the same way most of them do. Then the legislature has to revisit the appropriation and restrict its use in precise detail if they don't approve of the President's use of the previously appropriated funds.

1. The 2020 Budget battle that's about to start will be terrible. The dems are going to go full progressive, revise the funding levels, and put all kinds of restrictions on Trump. The GOP weenies in the Senate will cave, and Trump will either shut the place down, or try other "emergency" schemes. I'm not optimistic 2020 will be a good year.
2. The USSC may see the cases below, if they have "standing"? Nancy and the dems will also file lawsuits to stop the wall.
16 States: 16 States Sue to Stop Trump’s Use of Emergency Powers to Build Border Wall
ACLU: 'There was and is no national emergency': ACLU sues Trump over order for border wall
Landowners: https://www.buzzfeednews.com/article/zoetillman/national-emergency-landowner-cemetery-suit
3. Your last sentence is scary. If president AOC dismisses the entire US military and takes that $650b and declares a national emergency to use that $650b to give to 3rd world countries to fight climate change, the GOP couldn't do anything? Even if the legislature passes stringent appropriations the president can declare an emergency and we're where we are now, unless Congress can override a presidential veto, and the dems have more than enough crazies to pass anything they want.

I'm not confident that Congress and the president will be able to get anything done.
Its better when someone describes a "no-brainer" course of action that gets us past this mess. I'm not seeing any? What would president Osiris recommend?